For opponents of capital punishment, these would appear promising times. Not since 1972, when the Supreme Court invalidated the death penalty as then administered, has there been such palpable concern over its use, reflected in the lowest levels of public opinion support evidenced in some time. This concern is mirrored in the American Bar Association's recently recommended moratorium on use of the death penalty, the consideration of or actual imposition of moratoria in several states, and even increasing doubts voiced by high-profile political conservatives. An array of troubling empirical realities has accompanied this shift: persistent evidence of racial bias in the use of the death penalty; inadequate capital defense counsel; gross geographic variations in death sentence imposition rates, both between and within death penalty jurisdictions; American's solitary status among major democratic nations as an endorsee of executions; and, perhaps most influentially, evidence that factually innocent persons have been condemned to death and that the capital process itself is "broken." Concern has also arisen over the execution of particular death row sub-populations, including the mentally retarded, teenagers, and inmates who have been "reformed" (e.g., Karla Faye Tucker in Texas). It is hard to identify precisely why this reexamination is occcurring at this point in America's lengthy relationship with capital punishment. Concerns over the unfair application of the death penalty due to race and socio-economic background, and the fallibility of the capital process, including the execution of the factually innocent, have been around for decades. So, too, has been skepticism over a core historic justification of the death penalty - its supposed deterrent value - what Clarence Darrow long ago aptly dismissed as an "ancient superstition." At the same time, public support for the other core historic rationale, retribution, remains strong despite decades of criticism and counter-argument, today constituting the most common basis of support among death penalty advocates. Nor can the increasing skepticism be attributed to judicial critique, given that the courts, with the Supreme Court in the lead, have essentially withdrawn from the death penalty debate. The Court, in Justice Blackmun's words, resolved some time ago to merely "tinker with the machinery of death," rather than question the constitutionality of capital punishment in any fundamental way.
Wayne A. Logan,
Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/8